When a marriage deteriorates, there are questions about how property will be divided. However, parents going through a divorce share one concern: how the divorce will affect their children. Battles over custody and visitation often ensue, leaving the children to face the consequences of those decisions. Ultimately, the court will decide the custody arrangement – joint custody or sole custody.
To address the division between parents, the court considers what is in the child’s best interest. But what does that mean?
WHAT IS THE BEST INTEREST OF A CHILD?
The “best interest of the child” is an invention of the court that allows a Judge to make subjective decisions regarding what they view as in the child’s best interest during divorce proceedings. There is no set standard that must be met when the court looks at the child’s best interest, which gives the Judge in the case broad discretion. Some may argue that this provides the court with too much control and can lead to issues if the Judge makes a decision that conflicts with the child’s best interest.
However, it is necessary to give the presiding Judge this authority because it affords him the ability to hear both sides of the argument and decide what best fulfills the child’s needs. In addition, emotions often run high in divorce cases, especially when children are involved, and parents may become blinded by the situation, so Judges have the burden of weighing all the factors at play and making a decision that will determine the lifestyle of the child following the divorce.
WHAT FACTORS ARE CONSIDERED IN THE BEST INTEREST OF A CHILD?
Under Section 63-15-240 of the South Carolina statute, the state legislature expressly states:
“In issuing or modifying a custody order, the court must consider the best interest of the child, which may include, but is not limited to:
(1) the temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) the preferences of each child;
(4) the wishes of the parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
(6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
(7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) any effort by one parent to disparage the other parent in front of the child;
(9) the ability of each parent to be actively involved in the life of the child;
(10) the child’s adjustment to his or her home, school, and community environments;
(11) the stability of the child’s existing and proposed residences;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
(13) the child’s cultural and spiritual background;
(14) whether the child or a sibling of the child has been abused or neglected;
(15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
(16) whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons; and
(17) other factors as the court considers necessary.”
TWO MAJOR ELEMENTS OF CUSTODY
In most cases, parents are asked to work through a “parenting plan” and will often utilize a Guardian Ad Litem.
A parenting plan is used by the court and lawyers to determine what each parent thinks is an appropriate way to co-parent moving forward. Often, the parenting plan is a work in progress – each side making suggestions and alterations, and in many cases, this becomes the bases of an agreement concerning the children.
Another helpful tool is using a Guardian Ad Litem (GAL). A GAL represents the interest of the child. According to the South Carolina bar website, “in the family court, guardians ad litem are appointed for children in contested custody and visitation cases, child name change cases, adoptions, DSS abuse and neglect cases, paternity actions, involuntary commitments, and termination of parental rights cases. In private proceedings involving minor children, either parent can request the use of a guardian ad litem, or the court can appoint one on its own motion.”
The South Carolina Bar website goes further by stating that a guardian ad litem will investigate “matters that might not be brought before the court by the attorneys representing the parties.” However, it is essential to note that the “guardian ad litem is NOT the child’s custodial guardian or attorney.” Instead, GALs conduct home visits, observe the children and parents, and review necessary information to make a recommendation to the court.